Ms R and Enable Ireland

Whether Enable Ireland has complied with the provisions of section 10 of the Act in relation to the applicant’s request for reasons for various acts relating to the termination of her employment

27 September 2019

Background

On 15 April 2019 the applicant submitted a request to Enable Ireland for certain records and statements of reasons relating to the termination of her employment in 2007. This review is concerned solely with the applicant’s request for certain statements of reasons. Her request for records has been dealt with in a separate review (Case number OIC-53551-K9W2Y8 refers).

The applicant sought reasons for the following:

1. the premature termination of her contract with Enable Ireland

2. sums of payments on termination of her contract

3. why she was informed she would not be employed by the Health Service Executive again

4. why she was misinformed of procedures for submitting an accident form

5. why she was not provided with an adequate induction into the job and support in her new role

As Enable Ireland did not issue a decision on the request within the statutory four week timeframe, the applicant sought an internal review of the deemed refusal of her request. On 29 May 2019 Enable Ireland wrote to the applicant in connection with her request for records but it made no reference to her request for statements of reasons. On 4 June 2019 the applicant sought a review by this Office of Enable Ireland's decision.

During the course of the review, Enable Ireland provided the applicant with a statement of reasons for parts 1 and 2 of the applicant’s request. Following receipt of that statement, the applicant made further comments. I have now decided to bring this case to a close by way of a formal, binding decision. In conducting this review I have had regard to the correspondence between the applicant and Enable Ireland as set out above and to the communications between this Office and both Enable Ireland and the applicant on the matter.

Scope of Review

This review is concerned solely with the question of whether the applicant is entitled to statements of reasons for parts 3 to 5 above and whether Enable Ireland provided an adequate statement of reasons for parts 1 and 2 above.

Preliminary Matters

Before I address the substantive issues arising in this case, I wish to make a number of preliminary comments, the first of which concerns the manner in which Enable Ireland responded to the applicant’s request. Section 10 of the FOI Act provides for a right of individuals to be given reasons for certain acts of FOI bodies that affect them. Enable Ireland did not treat the applicant’s email of 15 April 2019 as an application for statements of reasons under section 10.

In my view, it is clear from the applicant’s email that she was seeking to exercise her rights under section 10, notwithstanding that she did not expressly state that the application was being made under section 10.

Under section 10(11) of the Act, an application which does not purport to be an application under section 10 but which applies for information, access to which can be obtained only be way of an application under section 10, the body must offer assistance to the individual in question in the preparation of such an application. I expect Enable Ireland to pay closer attention to future applications made under the Act for statements of reasons to determine if they should be treated as applications under section 10

Second, in her correspondence with this Office, the applicant expressed concerns about the manner in which Enable Ireland had treated her in relation to her employment and made a number of complaints regarding staff in the organisation. As has previously been explained to the applicant, this Office has no remit to investigate complaints, to adjudicate on how FOI bodies perform their functions generally, or to act as an alternative dispute resolution mechanism with respect to actions taken by FOI bodies.

Third, during the course of the review, the applicant expressed various concerns about the fairness of the review process. While I do not propose to engage with those arguments in this decision, I can confirm that I have considered the applicant's arguments and do not accept them. I am satisfied that the applicant was given a reasonable opportunity to comment on all material issues arising.

Fourth, the applicant also objected to the publishing of anonymised decisions on the Office’s website. The applicant was notified that this Office is legally required to publish all binding decisions and was offered the opportunity to withdraw her application for review in this case, which she declined. As a result, this review has progressed to a legally binding decision and has been published on this Office’s website in the usual manner in due course.

Finally, I should explain that a review by this Office is considered to be de novo, which means that it is based on the circumstances and the law as they pertain at the time of the decision.

Analysis and Findings

Section 10 of the FOI Act provides that a person who is affected by an act of an FOI body, and has a material interest in a matter affected by the act or to which it relates, is entitled to a statement of reasons for the act as well as a statement of any findings on any material issues of fact made for the purposes of that act.

To be entitled to a statement of reasons for an act of a public body, the person seeking the statement of reasons must be affected by the act and have a material interest in a matter affected by the act or to which it relates.

Subsection (5) of section 10 provides that a person has a material interest in a matter affected by an act of an FOI body or to which it relates:

"if the consequence or effect of the act may be to confer on or withhold from the person a benefit without also conferring it on or withholding it from persons in general or a class of persons which is of significant size having regard to all the circumstances and of which the person is a member."

Under subsection (13), benefit is defined as including any advantage to the person, or the avoidance of a loss, liability, penalty, forfeiture, punishment or other disadvantage affecting the person.

Taking section 10 as a whole, this Office considers that the word "act" in the section must be interpreted as the exercise (or refusal to exercise) of a power or function which may result in the conferring or withholding of a benefit. In addition, the reasons for the act must have a bearing on the outcome of whether a person receives or does not receive a benefit or suffers a loss or a penalty or other disadvantage. In other words, if the same outcome would result regardless of the reasons for the act in question then section 10 does not apply to that act.

The FOI Act is silent as to the standard of proof which should apply in such cases. This Office takes the view that the standard of proof required is that of "the balance of probabilities". It follows that an applicant, seeking a statement of reasons for an act of a public body under section 10 must show that on the balance of probabilities, he or she has a material interest in a matter affected by the act or to which it relates. It may not be necessary in every case for the applicant to furnish material evidence to support his or her position. However, at a minimum, he or she must be in a position to set out the circumstances that establish an entitlement to a statement of reasons, by identifying the benefit in question, within the meaning of section 10(13) of the FOI Act, the basis upon which the act may be said to confer on or withhold from him or her that benefit, and the basis for holding that the act does not also confer or withhold the benefit from persons in general or a class of persons which is of significant size.

Parts 1 and 2 of the applicant’s request relate to the premature termination of her contract of employment with Enable Ireland and payment upon that termination. During the course of the review Enable Ireland provided a statement of reasons. In essence, the statement explained that issues arose as a result of the applicant’s management style not fitting the organisation and that an agreement was reached whereby she left the organisation in lieu of termination.

In response, the applicant alleged that she was effectively unfairly dismissed for reasons that were not contained in the statement provided. However, she provided no evidence to support her claims. In the circumstances, I am satisfied that Enable Ireland has provided an adequate statement for the purposes of section 10 of the FOI Act.

With regard to parts 3 to 5 of the request, the applicant did not identify any benefit conferred or withheld as a result of the acts of Enable Ireland. While the applicant may not be satisfied with the circumstances of her employment and termination of same, it is not for this Office to make any findings as to whether or not they were appropriate. Accordingly, I am of the view that parts 3 to 5 of the applicant’s request do not comprise acts or decisions of a public body in which she has a material interest. Accordingly I find that the applicant is not entitled to statements of reasons in respect of those parts of her request.

Decision

Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the decision of Enable Ireland on the grounds that it has provided the applicant with an adequate statement in relation to parts 1 and 2 of her request. I find that she is not entitled to statements of reasons for parts 3 to 5 of her request.

Right of Appeal

Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.